EIA Testifies About Concerns Over Proposed Text Messaging Regulations in Oregon
David Carter, President and CEO of the Ecommerce Innovation Alliance (EIA), recently testified before the Oregon House Committee on Commerce and Consumer Protection regarding House Bill 3865. The EIA expressed several concerns about the potential unintended consequences of the bill, which aims to update telemarketing laws to include text messages.
Carter began by stating that while the EIA shares the goal of preventing unwanted calls and texts, they have seen similar "mini TCPA" laws in other states create harmful impacts, particularly for small businesses trying to comply with a patchwork of differing regulations.
Here are some of the key concerns Carter raised regarding HB 3865:
Unclear Definition of Marketing to Text Messages: The EIA finds the bill's definition of what constitutes marketing via text message to be unclear, especially concerning newer technologies like RCS messaging which don't use traditional telephone networks. They pointed out that the Federal Communications Commission (FCC) has currently opted not to regulate this newer technology. They also questioned whether the definition would encompass IP-enabled messaging services like WhatsApp. The EIA suggested focusing the regulations on SMS and MMS messages.
Requirement to Identify Caller by Name: Carter highlighted the impracticality of requiring marketing text messages to include the first and last name of an individual sender. He stated that this is not standard practice for companies that send messages to large lists of consenting customers. While the EIA supports identifying the responsible company, they requested reconsideration of the individual name requirement.
Most Restrictive Calling Time Period and Implementation Challenges: The proposed bill would require all solicitation messages to stop at 7:00 p.m., which would be the most restrictive in the country and potentially impossible to implement effectively. Carter explained that due to the portability of mobile phone numbers across state lines and the FCC's restrictions on sharing real-time location data, businesses lack the technical means to definitively determine an individual's location in Oregon. He mentioned that the EIA has filed a petition with the FCC on this specific issue, and the FCC is accepting public comment in advance of providing new guidance due to the compliance challenges and increasing litigation in this area.
Limits on Number of Messages: The bill's proposed limit of three messages within a 24-hour period raises questions about how to count messages (e.g., MMS with image and text) and how it would impact conversational text exchanges or time-sensitive events like online sales or interactive promotions. Carter provided examples like a Super Bowl Sunday scavenger hunt over text that could involve more than three messages within a short timeframe.
Concerns Regarding the Use of “False Identity”: While supporting the intent to prevent fraudulent messages, the EIA expressed concern that the provision regarding "false identity" could inadvertently impact legitimate marketing practices, such as brands sending messages on behalf of a mascot (e.g., Disney's Mickey Mouse or McDonald's Ronald McDonald) to customers who have provided consent.
In conclusion, while the EIA supports the goal of protecting consumers from unwanted text messages, they urged the committee to carefully consider the potential unintended consequences of House Bill 3865 on small businesses and the practical challenges of implementation. They emphasized the need to find a balance that protects consumers while allowing businesses to operate effectively when consumers have provided their consent to receive messages. EIA expressed its willingness to work with the committee and the Oregon Department of Justice to find common ground.
